It is in that role that Professor Chen has just published his thoughts on the National Security Law for Hong Kong considered by the Central Authorities. That essay, 談國安法爭議： 以香港為家的我們的心聲 [On the National Security Law Controversy: Views of those Who Consider Hing Kong Home] was published as part of the 215th issue of Hong Kong 01 Weekly News (May 25, 2020) "Disputes on National Security Law: Voices of Those Who Consider Hong Kong Home."
我們對於當前的局面，應如何思考呢？對於同一問題，當然可以有不同的觀點和角度。我寫這篇文章，就是想表達一種我相信是「以香港為家的我們」的觀點和角度，這很可能有別於正在準備移民的人的觀點和角度，也可能有別於在海外的華人或外國人的觀點和角度，當然也有別於中國內地居民的觀點和角度。[How should we think about the current situation? For the same problem, of course, there can be different views and angles. When I write this article, I want to express a point of view and angle that I believe is "we who use Hong Kong as our home". This may be different from the point of view of people who are preparing to emigrate, and may also be different from those overseas. The views and perspectives of Chinese or foreigners are of course different from those of mainland Chinese residents.]
In a 24-minute speech broadcast to Hongkongers on Monday, Tung warned that the city had become a weak link in the security of the nation, while also echoing top Beijing officials’ reassurances that the new law would only go after a minority involved in relevant crimes. “If you do not plan to engage in acts of secession, subversion, terrorism or conspiring with foreign influence in connection with Hong Kong affairs, you will have no reason to fear,” he said, a day after thousands took to the streets to oppose the impending law and radical protesters returned to violence and vandalism. * * * “What’s more worrying is how some anti-China forces in the West have distorted the truth and openly supported anti-China radicals in Hong Kong … We can no longer tolerate how foreign forces have conspired with radicals in Hong Kong to put at risk China’s sovereignty, its authority and the legitimacy of the Hong Kong Basic Law.” (Hong Kong needs national security law because it is ‘easy target for hostile foreign opportunists’: former leader Tung Chee-hwa)
("One who identified herself by her last name, Lang, said:
“There is nothing else we can do really. We have to do something that is helpful instead of just giving up.”)
Its conclusion provides the perfect foundation for considering its quite nuanced arguments:
在去年反修例運動高潮時，我曾感覺到，香港「一國兩制」的路正走得愈來愈窄，看不到任何希望。所謂山窮水盡疑無路，柳暗花明又一村，但願「國安法事件」的危機可以成為一個轉機，在看來瀕臨失敗邊緣的「一國兩制」事業崩潰之前，力挽狂瀾。更希望曾誤入歧途的青少年能回頭是岸，回歸尊重他人權利和遵守體現社會成員共同利益的法律的正路，我相信這是以香港為家的我們的衷心盼望。[At the climax of the Anti-Amendment Movement last year, I once felt that the road of "one country, two systems" in Hong Kong is getting narrower and narrower, and I see no hope. The so-called mountains and rivers are full of doubts, and there is another village in the dark. I hope the crisis of the "national security law incident" can become a turning point. Before the collapse of the "one country, two systems" cause that seems to be on the verge of failure, it will turn the tide. I also hope that the young people who have gone astray can return to the shore and return to the right path of respecting the rights of others and complying with laws that reflect the common interests of members of society. I believe this is our sincere hope that Hong Kong is the home.]
To the pan-democrats there is the offer of the support for legalism, for a scrupulous attention to the forms and effects of the law thorough which the relationship between Hong Kong and the Central Government have been developed, and thus developed, applied: "In this regard, I hope that the drafters will be able to speak up and listen to the opinions of Hong Kong people. . . We also hope that this legislation can comply with the rule of law and the principle of non-retroactivity of criminal law."
Two Sessions 2020:, supra ("The coverage of subversion under the new law was much wider than what was proposed in the local Article 23 bill back in 2003, according to Basic Law Committee member Albert Chen Hung-yee, a University of Hong Kong law professor. . . . Chen noted that the new law targeted subversive acts that were against the “state power”, instead of only the “central government” as in the 2003 version. . . it covers many more administrations, including Hong Kong and other local authorities,” he added.")).
|(China Development Bank Backs Greater Bay Area With $50 Billion Lending Pledge).|
Albert Chen Hung-yee 陳弘毅 served as a member of the Law Reform Commission of Hong Kong in 2002-08, a member of the Committee on Review of Post-Service Outside Work for Directorate Civil Servants in 2008-09, and a member of the Commission for Strategic Development of the Hong Kong Government in 2005-2012. He is currently a member of the Committee for the Basic Law of the Hong Kong Special Administrative Region under the Standing Committee of the National People's Congress of the People's Republic of China, a Justice of the Peace, and an honorary professor at the Renmin University of China, Tsinghua University, Peking University, Zhongshan University, Macau University, and the Institute of Advanced Studies in Social Sciences of Fudan University.
Chen Hongyi on the National Security Law Controversy: View of Those Who Consider Hong Kong Home
Writer: Contributing Writer
Last update date: 2020-05-25 17:56
Last year ’s anti-amendment campaign led to social unrest, and the number of immigrants considered surged. Last Friday (May 22), the National People ’s Congress announced that it was about to make a decision on Hong Kong ’s national security legislation, which immediately caused a surge in enquiries about immigration and the Hong Kong stock market plummeted. These scenes remind me of the crisis of Hong Kong people's confidence in Hong Kong's future since the 1980s, such as the "Black Saturday" of September 24, 1983, when the Sino-British negotiations on the future of Hong Kong were on the verge of rupture. The "exchange rate" was established after the incident), and even the immigration wave after the "June 4th" in 1989.
Written by: Chen Hongyi
From the 1980s to the present, Hong Kong people have experienced many ups and downs in the face of the uncertain future and the contradiction between "one country, two systems." In 2017, the Hong Kong Special Administrative Region celebrated the twentieth anniversary of its return. President Xi Jinping came to visit. At that time, everyone thought that although the practice of "one country, two systems" in the past two decades had some twists and turns, overall it was still a success. At that time, we did not expect that the situation will turn sharply in 2019. Chen Tongjia ’s suspected murder in Taiwan led to the SAR government ’s proposal to amend the law. There was an unprecedented political storm in Hong Kong. Social unrest continues to intensify, and various words and deeds challenging the "bottom line" of the central government have appeared, including "Hong Kong independence", "black violence", and "speculation", and "one country, two systems" has fallen into an unprecedented crisis. Later, because of the epidemic, the riots were alleviated, but what is the prospect, we still do not see any light and hope.
We all belong to a community of shared destiny
After a wave of turmoil and a wave of turbulence, the National People's Congress' upcoming "Decision" on Hong Kong's national security legislation has caused an uproar in society, and many people are very worried about Hong Kong's prospects. The Central Government explained this "Decision", pointing out that because Hong Kong has long failed to fulfill the constitutional responsibility of the National Security Legislation of Article 23 of the Basic Law, and Hong Kong has also committed acts and activities that seriously endanger national security, the Central Government has no choice but to take action to exercise its authority over national security issues.
The central government stated that the purpose of this approach is not to change or detract from "one country, two systems," but to ensure the smooth and accurate implementation of "one country, two systems," so that it can "strive for the long term." The central government believes that the purpose of the proposed national security law for Hong Kong is to curb acts of splitting the country and subverting state power, terrorist activities, and interference of foreign forces in Hong Kong affairs. If these goals can be achieved, "one country, two systems" can be smoothly implemented In order to ensure the prosperity and stability of Hong Kong and even the interests of international investors in Hong Kong.
How should we think about the current situation? For the same problem, of course, there can be different views and angles. When I write this article, I want to express a point of view and angle that I believe is "we who call Hong Kong home". This may be different from the point of view of people who are preparing to emigrate, and may also be different from those overseas. The views and perspectives of Chinese or foreigners are of course different from those of mainland Chinese residents.
The "Hong Kong home" I am talking about is different from the so-called "true Hong Kong people" mentioned in some recent discussions. I disagree with the reference to "true Hong Kong people". I think this discriminates against those who are not considered "true Hong Kong people" and use Hong Kong as their home. I believe that people who take Hong Kong as their family belong to a community of shared destiny, and they must all work together to overcome difficulties. I believe that most people who live in Hong Kong hope that Hong Kong can restore its former prosperity and stability. People can live and work in peace, live freely and free from fear, and fully develop their personality and talents to live their lives in peace and dignity. Dissidents can tolerate and respect each other, rather than abuse, personal attacks and slander. Hong Kong people once enjoyed these social conditions, but they did not exist in the anti-revision movement in the second half of last year. Those who advocate the so-called "speculation" are undermining these conditions. They are harming the basic rights and interests of the vast majority of Hong Kong-based families. We who are based in Hong Kong must adhere to a rational and pragmatic spirit, make a clear distinction between right and wrong, and understand that the so-called "speculation" is absolutely contrary to the common interests of "Hong Kong as a family".
Hong Kong does not enjoy the power of national security legislation
To understand the current situation in Hong Kong, especially the debate on national security legislation, it must be traced back to the origin of the Basic Law and its system design. The Basic Law was drafted in the second half of the 1980s, adopted by the National People's Congress in 1990, and implemented in 1997. The drafters of the Basic Law realized that the Hong Kong Special Administrative Region, as part of the People ’s Republic of China, must of course have legislation to guarantee the national security of the People ’s Republic of China. All countries in the world have legislation to ensure national security. In countries with local self-government arrangements, whether it is a federal system (such as the United States, Canada, and Australia) or a unitary system (such as the United Kingdom-Scotland enjoys a high degree of autonomy in the United Kingdom), Legislative powers on national security issues are controlled by the central government or the federal government, and are usually not granted to local governments. However, the Basic Law has made special arrangements in this regard. Article 23 of the Basic Law stipulates that "Hong Kong Special Administrative Region shall legislate itself to prohibit" certain acts that endanger national security, such as treason, subversion, secession, and incitement to rebellion. , Stealing state secrets, etc.
Article 23 was stipulated because there was no law on the crime of endangering national security in mainland China at that time. At that time, China's Criminal Law only had provisions on "counter-revolutionary crimes", which were equivalent to crimes against national security in other countries. Provisions. According to the principle of "one country, two systems", Hong Kong is a capitalist society, and the counter-revolutionary crime under the socialist legal system does not apply to Hong Kong. Therefore, there is a special arrangement in Article 23, which provides that the Special Administrative Region shall legislate to deal with crimes against national security. This provision not only gives the SAR the power to make relevant laws, but also requires the SAR to assume a legal obligation, which is generally called constitutional responsibility, to complete the relevant legislation.
Article 23 is not to say that the Hong Kong Special Administrative Region enjoys exclusive or exclusive legislative power over national security legislation; the Central Government has not waived or transferred its power over national security legislation. Therefore, the power to enact legislation on national security issues is the power shared or shared by the central government and the SAR. The concept of sharing certain powers between the central and local governments is also widespread in foreign constitutional systems: that is, on certain matters, the central or federal government has exclusive or exclusive legislative power, and on other matters, local governments have unique There are or exclusive legislative powers. The third case is some matters both central and local governments enjoy legislative powers. Article 23 belongs to this situation. Its institutional arrangement is that, first of all, the Special Administrative Region shall bear the obligations of national security legislation and exercise relevant legislative powers. However, in the case where the basic constitutional responsibility has not been fulfilled 23 years after the establishment of the Special Administrative Region, it is legally possible for the Central Bank of China to exercise its power to deal with situations that already exist in the Special Administrative Region and seriously endanger national security. Because the national security legislation mainly protects the interests of the central government or the state, not just the special administrative regions themselves.
If the draft of the "Decision" is approved by the National People's Congress this week, the next step is to draft the "National Security Law" applicable to Hong Kong. Since the National Security Law will be listed in Annex III in accordance with Article 18 of the Basic Law and will be directly implemented in Hong Kong, without the need to go through the adaptation process of local legislation, it is necessary to ensure that the National Security Law can be connected and coordinated with the Hong Kong legal system; In this regard, I hope that the drafters will be able to speak up and listen to the opinions of Hong Kong people. We hope that this legislation can be drafted with reference to the draft National Security (Legislative Provisions) Ordinance drafted by the Hong Kong SAR Government in 2003. At that time, the SAR Government did a lot of research work to ensure that the relevant drafts can meet the relevant international human rights standards. We hope that this National Security Law can reflect the spirit of "one country, two systems", respect the difference between the two systems, and will not directly apply the criminal regulations on national security in mainland China to Hong Kong, but take into account Hong Kong's common law system and the current The human rights standards applicable to Hong Kong seek to achieve an appropriate balance between safeguarding national security and individual rights and freedoms.
We also hope that this legislation can comply with the rule of law and the principle of non-retroactivity of criminal law. One of the important requirements of the rule of law principle is that the legal provisions must be clear and clear, so that citizens can predict the legal consequences of various behaviors: which behaviors are legal and which are illegal. The requirement of predictability in the operation of this law is one of the internationally recognized rule of law. According to the international human rights standards applicable to Hong Kong, the legal provisions on criminal offenses should not be retroactive. The relevant provisions can only regulate actions that occur after the law is formally promulgated and entered into force. In addition, I noticed that Chief Executive Lin Zheng Yuee said on Friday that the enactment of the National Security Law will not affect Hong Kong ’s judicial independence, the court’s power of adjudication and final adjudication; she also stated that she believed that after the National Security Law It is the organs of Hong Kong that implement it. We hope that the SAR Government can reflect the views of Hong Kong people to the central government and ensure that the above principles can be reflected in the content of the National Security Law that was finally passed.
The crisis also brought about an opportunity to save one country, two systems
Chinese tradition has Confucianism and legalism. From the perspective of Confucianism, the ideal situation is that the people can consciously fulfill their moral and social obligations through moral education, and there is no need to control them with criminal laws. The idea of the legalists is that human nature has its evil aspects, so it is necessary to enact compulsory laws through the state, with clear rewards and penalties, so that people have a law to follow, so that social order can be maintained. Although modern legal thought attaches importance to human rights, it does not exclude the deterrent effect of criminal law on crimes, and also believes that criminals are subject to criminal punishment, which is consistent with the principle of justice. Wang Chen, vice chairman of the National People's Congress, mentioned to the National People's Congress on the draft decision of the National People's Congress that the purpose of the National Security Law is to "prevent, stop, and punish" acts that endanger national security. We hope that after the enactment of the National Security Law, citizens can voluntarily abide by its norms; if the National Security Law can effectively deter related acts that endanger national security, there is no need to implement the National Security Law through prosecution and conviction. This is an ideal situation. I believe that those who call Hong Kong home earnestly hope that the social order in Hong Kong will return to normal and that "one country, two systems" will return to the right track.
At the climax of the Anti-Amendment Movement last year, I once felt that the road of "one country, two systems" in Hong Kong is getting narrower and narrower, and I see no hope. The so-called mountains and rivers are full of doubts, and there is another village in the dark. I hope the crisis of the "national security law incident" can become a turning point. Before the collapse of the "one country, two systems" cause that seems to be on the verge of failure, it will turn the tide. I also hope that the young people who have gone astray can return to the shore and return to the right path of respecting the rights of others and complying with laws that reflect the common interests of members of society. I believe this is our sincere hope that Hong Kong is the home.
About the Author:
The Law School of the University of Hong Kong
Zheng Chenlanru Fund Professor of Constitution
The above excerpt is from the 215th issue of "Hong Kong 01" Weekly News (May 25, 2020) "Disputes on National Security Law: Our Voices with Hong Kong as the Home".